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In 2013, then-Chief Judge Rader argued that Congress should grow the number of judges on the Federal Circuit to handle the “tsunami” of patent appeals he saw “heading up the Potomac” from the Patent Office.[1]

The following year, in FY2014, more than 1,300 IPR requests were filed at the Patent Office and in FY2015, more than 1,600. While the Patent Trial and Appeal Board has been expeditiously handling these proceedings, a question has been looming over what would happen when the wave of appeals from adverse decisions hits the U.S. Court of Appeals for the Federal Circuit, which is the court having exclusive jurisdiction over appeals from IPR decisions. Will it be a tsunami, a gentle lapping of the waves, or something in between?

Despite Judge Rader’s ominous prediction, as of right now, the Court appears to be surfing the wave of IPR appeals quite well. Of the roughly 3,000 IPR requests that have been filed to date, close to 400 have already been appealed to the Federal Circuit. Of that number, the Federal Circuit has cut the number of distinct appeals roughly in half by consolidating related appeals—such as appeals from IPRs involving the same parties and similar patents. And of the roughly 200 appeals after consolidation, the Federal Circuit has issued about 40 decisions.

Compare jurisdictions: Patents

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